Respondent, CML Metals, asserts that the Secretary, acting under the Mine Act, lacks jurisdiction in this matter because the Complainant does not meet the definition of “miner” under the Act.  CML Mot. 2.  Specifically, Respondent argues that “[w]ith respect to the safety of railroad workers, including safety when repairing railcars Congress has . . . granted jurisdiction to” the FRA.  CML Mot. 5.  Moreover, the Secretary has assigned jurisdiction to OSHA for any “claims of discrimination for reporting [railroad] safety violations.” CML Mot. 5-6.

 

            Respondent argues that, because Orr only worked on the rail cars and the spur, and not in the actual production of iron ore, he is not a miner as defined by the Mine Act.  While Respondent asserts that where jurisdictional questions have arisen, the Commission has employed a two part “functional test” which addresses “(1) whether the operation in question performs one of more the activities listed in 30 U.S.C. § 802(h)([1]) [and in Appendix A of the OSHA/MSHA Interagency Agreement]; and (2) a review of the nature of the activities being performed.”  CML Mot. 8 (citing Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 7 (1982)).  Further, they assert, neither “railroad car” repair nor “railroad operation” are listed in the Act’s definition of “mine” or as part of “mining operations.” and the nature of railroad car repair, is not “mine-related.”  CML Mot. 9.  Given the Federal Railroad Agency’s past consistent oversight and inspection activities, as well as MSHA never having previously conducted an inspection of the area, proper authority should rest with the Federal Railroad Agency and OSHA.  CML Mot. 11-12.

 

            The Secretary argues that Respondent is not entitled to summary decision and that jurisdiction is proper. The Secretary asserts that what is to be considered a “mine” under the Act should be given the broadest possible interpretation.  Sec’y Opp. 9-10.  Moreover, the Act’s plain language and the Secretary’s reasonable interpretation of any ambiguities in the Act establish that jurisdiction is proper.  Sec’y Opp. 10.  The Secretary argues that the “loadout,” qualifies as a mine under two theories.  First, the “loadout is part of a private way or road appurtenant to the Mine – the Railroad Spur.”  Sec’y Opp. 11. Second, the loadout and spur “are lands – which include structures, facilities, equipment, machines, tools or other property - on the surface used in the work of preparing minerals.”  Id.  Given that Orr worked at the loadout and on the spur, he was a “miner” under the Act.  Id.  Moreover, the OSHA/MSHA Interagency Agreement’s lack of inclusion of “railroad car repair” in its list of activities subject to Mine Act jurisdiction is immaterial, as the list is only illustrative and not exhaustive. Id. 17.  Finally, any lack of prior inspections or other enforcement activity related to the subject area is immaterial when it comes to the question of jurisdiction in this matter.  Id. 17-18.

 

Section 4 of the Mine Act, 30 U.S.C. § 803, provides that each “coal or other mine” is subject to the provisions of the Act. “Coal or other mine” is defined under § 3(h)(1) of the Act to mean:

 

an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities.

 

30 U.S.C. § 802(h)(1).  

 

The legislative history of the Mine Act indicates that Congress intended a broad interpretation of what constitutes a “coal or other mine” under the Act. The Senate Committee stated that “what is considered to be a mine and to be regulated under this Act [shall] be given the broadest possibl[e] interpretation, and . . . doubts [shall] be resolved in favor of … coverage of the Act.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978). See Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 591-92 (3d Cir. 1979), cert. denied, 444 U.S. 1015 (1980) (“[T]he statute makes clear that the concept that was to be conveyed by the word [mine] is much more encompassing than the usual meaning attributed to it [-] the word means what the statute says it means.”).

 

Shamokin Filler Company, Inc., 34 FMSHRC 1897, 1902 (Aug. 2012).  Section 3(g) defines “miner” as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g).  Section 3(d) defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine[.]”  30 U.S.C. § 802(d)

 

In the instant case, I find that both CML Metals and CML Railroad are “operators” of “mines” as those terms are defined by the Act.  CML Metals is engaged in the milling of iron ore that is extracted from the adjacent excavation site. The mill can be classified as a “structure,”  “facility” and/or “equipment” that is used in, or to be used in, the milling of minerals and, accordingly, is a “mine” as defined by the Act. I further find that the loadout area of the rail line, or spur, that runs to the GDC Crusher #1 Mine, CML Mot. Ex. A ¶ 10, is a “private way . . . appurtenant to” both the excavation site and mill and, accordingly, is a “mine” as defined by the Act. 

 

The terms “private” and “appurtenant,” as used in Act’s definition of “coal or other mine,” have been determined to be “ambiguous” terms.  Sec’y of Labor (MSHA) v. National Cement Co. of California, 494 F.3d 1066, 1074-77 (D.C. Cir. 2007).  When a statute has been found to be ambiguous on an issue, a determination must be made as to whether an agency’s interpretation of that statute is a reasonable one.  Chevron, U.S.A., Inc v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). When “an agency’s interpretation of the statute it is charged with administering . . . is reasonable[,]”  deference must be afforded to such interpretation.  Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).  In Sec’y of Labor (MSHA) v. National Cement Co. of California, 573 F.3d 788, 792 (D.C. Cir. 2007) the court found the Secretary’s respective interpretations of “private” and “appurtenant” to be reasonable, and, accordingly found that those interpretations were due deference.  There, the court succinctly articulated the Secretary’s interpretation of the two terms.

 

“[P]rivate” roads are those restricted to a particular group or class of persons (not to a particular person) and . . . “appurtenant to” requires only that the road belong and provide a right of way to some more important thing (not dedicated exclusively to use by some more important thing.)

 

Id. at. 791 (citing National Cement Co. of California, 30 FMSHC 668, 672 (Aug. 2008).  Here, the spur and the loadout area were certainly “private.”  The spur, which is leased by CML Railroad from Union Pacific, as well as the loadout area, are used exclusively by, and for the sole benefit of, the various entities engaged in the extraction, milling and processing of ore at this particular site. This restriction on use is a clear indication of the “private” nature.  Moreover, the spur and loadout area provide a right of way to both the adjacent mill and excavation operation, thereby making them “appurtenant to” those respective areas.  Given the fact that the loadout and rail line would be useless, at least to CML Railroad, without the presence of adjacent excavation and mill sites, it is clear that the rail and the loadout area were a “way” to a “more important thing.” Accordingly, I find that the spur and loadout area come within the Act’s definition of “mine”. To find otherwise would ignore that the excavation site, mill, loadout, and spur are essential parts of the mining process at this particular operation and would fly in the face of Congress’s intent that what is considered to be a mine be given the broadest possible interpretation. 

 

Commission ALJ Koutras addressed a somewhat similar issue regarding a railroad in Harman Mining Corp., 3FMSHRC 45 (Jan 1981), aff’d sub nom Harman Mining Corp. v. FMSHRC, 671 F.2d 794 (4^th Cir. 1981).  In Harman, a fatal railroad haulage accident occurred at the operator’s central preparation plant.  A railroad employee was killed when struck by a runaway car. The operator argued that MSHA had no jurisdiction because the accident did not occur at a “coal or other mine” and, further, that the Mine Act did not include the transportation of prepared coal in its definition of mine.  The railroad cars in Harman were loaded at the preparation plant, dropped onto the tracks and moved off by the railroad.  The Judge found that the rail cars were part of the process at the preparation plant, that the track was “an integral and indispensable part of . . . [the] mining operations[,]” and that, accordingly, the activities in that area were subject to MSHA jurisdiction.  Id. at 51. While the Commission declined review, on appeal, the Fourth Circuit agreed with the Judge and held that the car dropping activity and subject section of track fit within the Act’s definition of “mine,” which Congress intended to “be given the broadest possible interpretation[, and to which any]  . . . doubts be resolved in favor of inclusion of a facility within the coverage of the Act.”  Harman, 671 F.2d at 796-797 (citing S. Rep. No. 95-181, 95th Cong., at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978) (“Legis. Hist.”).  Moreover, the court held that it is “immaterial” who owns the tracks when the evidence shows that the tracks are used by another party as part of its day to day operations.  Harman, 671 F.2d at 796.

 

In TXI Operation, LP., 23 FMSHRC 54 (Jan. 2001) (ALJ), Judge Feldman found that MSHA’s enforcement authority extended to a Union Pacific railroad crossing that granted exclusive access to the operator, TXI.  The judge held that it was clear that the railroad crossing was a “private way or road” that was “appurtenant” to the mine and, accordingly, fit within the Act’s definition of “coal or other mine.”  He noted that evidence that the operator was a licensee and lessee of the railroad crossing was “indicia of the requisite mine operator responsibility and control warranting a finding of Mine Act jurisdiction” and that, but for the mine, no motorists would have traveled over the railroad crossing.  Id. at 60.

 

Here, just as in Harman and TXI Operations LP, the rail line, and/or area where the rail line passes, is an integral part of the mine operation.   As lessee, CML Railroad enjoys exclusive use of the spur line and is charged with maintenance of such.  CML Railroad uses the loadout area and spur, over which it maintains exclusive control under the lease agreement, for the singular purpose of loading and transporting ore to the Union Pacific mainline and then on to its customers.  The only beneficiaries of this exclusive use are CML Railroad, CML Metals and the extraction operator at GDC Crusher #1 Mine.  Even though Complainant may have been performing work on a railroad car leased by CML Railroad, and was working on a spur leased from Union Pacific, the railroad car and spur are inextricably tied to the mining process.  Moreover, there is Commission precedent for upholding citations and orders related to railcar inspection and repair.  See U.S. Steel Group, Minnesota Ore Operations, 15 FMSHRC 1720 (Aug. 1993) (ALJ).

 

Given that Orr was an employee of CML Metals and working in what I have already found to be a mine, I find that, at all times relevant to this proceeding, he was a “miner” as defined by the Act.

 

Much of CML’s Motion was spent arguing that Federal Railroad Administration jurisdiction over the rail spur preempts MSHA’s jurisdiction.  I find this argument to be without merit.  The Commission has previously addressed the question of jurisdictional preemption by other agencies in the context of independent contractors who are found to be “operators” under the Act.  In Williams Natural Gas Co., 19 FMSHRC 1863 (Dec. 1997), the Commission found that a company that was delivering natural gas to a mine and transforming the natural gas into quantities and pressures required to start large kilns necessary to produce cement at the mine was an “operator” and therefore subject to the jurisdiction of the Mine Act.  The Commission rejected the company’s argument  that Department of Transportation regulations covering interstate natural gas pipelines preempted MSHA jurisdiction.   The Commission noted that an express indication of preemption of MSHA jurisdiction did not exist.   The same is true here.  Accordingly, I reject CML’s argument. 

II.   ORDER

 

            Given the undisputed facts and the legal reasoning set forth above, I find the Orr was a miner as defined by the Act, that CML metals, who employed Orr, as well as CML Railroad are mine operators and that MSHA has jurisdiction in this matter.  The Respondent’s Motion for Summary Decision is DENIED. 

 

 

 

 

 

                                                                                    /s/ Margaret A. Miller        

Margaret A. Miller

Administrative Law Judge

 

Distribution:

 

Matthew B. Finnigan, Office of the Solicitor, U.S. Department of Labor, 1244 Speer Boulevard, Suite 515, Denver, CO 80204

 

Bryan J. Pattison, Michael F. Leavitt, Durham Jones & Pinegar, P.C., 192 East 200 North, 3rd Floor, St. George, Utah  84770